Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 17 May 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
John Bram hall (England), member
S tijn Boey kens (Belgium), member
Philippe Diallo (France), member
Jérôm e Perlem uter (France), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C , Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 3 July 2016, the Player of Country B, Player A (hereinafter: the Claimant) and the
Club of Country D, Club C (hereinafter: the Respondent) signed an employment
contract (hereinafter: the contract) valid as from 3 July 2016 until 30 May 2017.
2.
According to article 4 of the employment contract, the Claimant was entitled, inter
alia, to receive a monthly salary of USD 13,636, payable “at the end of every Gregorian
month”. Furthermore, the same article stipulates the following: “in the end of the
contract, the second party [i.e. the Claimant] shall receive an amount of USD 15,000”.
3.
By means of a letter dated 8 March 2017, the Claimant put the Respondent in default
of payment of “USD 13,600 representing 3 months of salaries from December 2016
until February 2017” as well as of payment of USD 15,000, corresponding to “the fee
of signature planned for May 2017”, granting the Respondent a deadline to pay of 8
days. The Claimant further asked the Respondent “to stop immediately the high
negative pressure and the inhuman constraints against his person”. In accordance with
said letter, the Claimant affirmed that he “is victim of grave unbearable racist insults,
harassment and discrimination on behalf of the leaders of the clubs” and that “since
July 2016, [he] has never benefited from a residence permit which would have allowed
him to make his family come and to open a bank account”.
4.
On 14 March 2017, the Respondent replied to the Claimant’s letter of 8 March 2017
and stated that he “refuses to cash the cheques as usual” and asked the latter to
provide it with a bank account in order to make the payment. Furthermore, the
Respondent noted that it had made an application for the Claimant’s residence permit
“which takes time”. Finally, the Respondent stated that the Claimant got involved in a
fight with another player and that it decided “to sanction both players with
disciplinary fees by cutting 40% from their salary for two months”. The Respondent
further argued that the Claimant missed trainings from 10 January 2017 until 20
January 2017 “because he was in Country E without any excuse” and that it decided
“to cut 50% from his salary for two months according to the Bylaws of the club”.
5.
By means of two letters dated 15 May 2017 and 17 May 2017, the Claimant put the
Respondent in default of payment of USD 54,544 corresponding to his monthly salaries
of February, March, April and May 2017, as well as of payment of USD 15,000,
corresponding to “the end of contract fees eligible on May 31th”. The Claimant also
order the Respondent to issue an “exit permit” in order for him to leave the country.
The Claimant affirmed having been pressured and to have endured sever abuse from
the Respondent and that the latter “decided to cut several months of salaries without
any explanation and any chance to let the player express his opinion on this situation”.
Furthermore, the Claimant sustained that his absence was only due to the
Respondent’s incapacity to grant him a working permit for the duration of the
contract and underlined that the sanctions imposed on him are disproportional.
6.
On 4 June 2017, the Claimant signed a document (hereinafter: the document of 4 June
2017), in which it is stated the following: “I [the Claimant] confirm that I receive from
the club my full entitlements (all my due) under this contract, which end 30/05/2017
also undertake not to ask the club or any other party any entitlements due to the end
of this contract”.
Player A, Country B / Club C, Country D
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7.
On 15 August 2017, the Claimant lodged a claim before FIFA, asking that the
Respondent be ordered to pay to him the following amounts, plus 5% interest p.a. as
from 30 May 2017:
a. USD 17,044, corresponding to his outstanding salaries for the months of
February, March, April and May 2017 minus the sum of USD 37,500, which
was paid by the Respondent on 4 June 2017;
b. USD 15,000, corresponding to the bonus fee payable on 31 May 2017, as
stipulated in the contract;
c. USD 13,636 as “compensation”, corresponding to an additional monthly
salary;
d. USD 500,000 as compensation because of the Respondent’s violent conduct
towards the Claimant.
8.
According to the Claimant, the Respondent decided “on December 2016, January and
February 2017”, to “cut several monthly salaries” due to his alleged misconduct. The
Claimant further claimed that he was banned from the squad and had to train alone
and that the Respondent tried to isolate the Claimant and forced him to leave the
country.
9.
The Claimant sustained that he suffered from serious psychological distress after the
Respondent forced him to attend a training session in May 2017 although all his
teammates were allegedly on holidays during that time. Furthermore, the Claimant
explained that he had never received a working visa while he was under contract with
the Respondent and that consequently, on 17 May 2017, he had to put the
Respondent in default of payment and had to order the Respondent to issue an “exit
permit” in order for him to leave the country.
10. In addition, the Claimant stated that after several weeks of psychological pressure
from the Respondent, he had been forced to sign the document of 4 June 2017. In this
regard, the Claimant acknowledged having received on that same day two cheques in
the amount of USD 30,500 and USD 7,000 but claimed that the Respondent only
partially covered its debts.
11. By means of its letter dated 5 October 2017, FIFA invited the Respondent to provide its
position to the claim lodged by the Claimant within 20 days as of receipt of said
correspondence by DHL. In accordance with the DHL tracking report on file, the
Respondent received said correspondence on 17 October 2017.
12. On 16 November 2017, the Respondent’s submission was received, i.e. after the time
limit set by FIFA to reply to the claim had expired.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the matter at
hand. In this respect, it took note that the present matter was submitted to FIFA on
15 August 2017. Consequently, the Rules governing the procedures of the Players’
Status Committee and the Dispute Resolution Chamber (2017 edition; hereinafter:
Player A, Country B / Club C, Country D
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Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural
Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (2018 edition) the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a Player of Country B and a Club of Country D.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (2016
and 2018 editions), and considering that the present claim was lodged on 15 August
2017, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to
the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. However, the
Chamber emphasised that in the following considerations it will refer only to the
facts, arguments and documentary evidence, which it considered pertinent for the
assessment of the matter at hand.
5.
The members of the Chamber acknowledged that the Claimant and the Respondent
signed an employment contract valid as from 3 July 2016 until 30 May 2017, in
accordance with which the Respondent would pay the Claimant a monthly salary of
USD 13,636 for the duration of the contract as well as an amount of USD 15,000,
payable “in the end of the contract”.
6.
The Chamber equally noted that on 4 June 2017, i.e. after the expiration of the
contract, the Claimant acknowledged having received two cheques in the amount
of respectively USD 30,000 and USD 7,000. Moreover, the DRC acknowledged that,
on that same day, the Claimant signed a document containing a declaration in
accordance with which the Claimant admitted having received all his dues and
entitlements from the Respondent under the contract.
7.
Furthermore, the members of the DRC noted that on 15 August 2017, the Claimant
lodged a claim against the Respondent maintaining that said declaration was
signed by him under pressure from the Respondent and in order to be released by
the latter. Therefore, the Claimant argued that the Respondent only partially
covered its debts by paying him the total amount of USD 37,000 and claimed to be
owed the remaining outstanding remuneration in the total amount of USD 32,044,
Player A, Country B / Club C, Country D
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as well as the total amount of USD 513,636 as compensation due to the
Respondent’s alleged violent conduct towards him.
8.
Subsequently, the DRC observed that the Respondent, in spite of having been
invited to do so, had, for its part, failed to present its response to the claim of the
Claimant within the relevant time limit set by FIFA, i.e. 6 November 2017, taking
into account that the time limit set by FIFA was within 20 days as of receipt of its
correspondence dated 5 October 2017 by DHL, and in accordance with the DHL
tracking report on file, said correspondence was received by the Respondent on 17
October 2017. In fact, the reply of the Respondent was only received on 16
November 2017. As a result, bearing in mind the Chamber’s constant jurisprudence
in this regard and in application of art. 9 par. 3 of the Procedural Rules, the
Chamber decided not to take into account the reply of the Respondent and
established that, in accordance with the aforementioned provision, it shall take a
decision on the basis of those documents on file that were provided prior to the
deadline set by FIFA, in casu, on the statements and documents presented by the
Claimant.
9.
In this respect, and in relation to the argument of the Claimant that he was forced
to sign the document of 4 June 2017, the Chamber recalled that according to the
legal principle of the burden of proof, any party claiming a right on the basis of an
alleged fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural
Rules).
10.
In this context, the DRC took into account that the Claimant submitted pictures of
him allegedly training on his own as well as a video, in which he explained that the
Respondent allegedly cut the water in his apartment, in support of his allegation
that he had been isolated by the Respondent and that he had been coerced, by the
latter, into signing the above-mentioned document.
11.
Having duly taken note of the aforementioned documentation presented by the
Claimant, the members of the Chamber, after making reference to art. 12 par. 3 and
par. 6 of the Procedural Rules, according to which any party claiming a right on the
basis of an alleged fact shall carry the burden of proof and the evidence shall be
considered with free discretion respectively, concluded that such documentation
presented by the Claimant did not prove beyond doubt that the Respondent
coerced the Claimant into signing the above-mentioned document. Consequently,
the DRC decided that the Claimant’s allegations in this regard cannot be accepted.
12.
Furthermore, the DRC was eager to emphasise that a party signing a document of
legal importance without knowledge of its precise contents, as a general rule, does
so on its own responsibility.
13.
In light of all of the above, and in particular bearing in mind the fact that on 4 June
2017 the Claimant signed a document by means of which the Claimant waived any
claim he might have or have had against the Respondent, and had also received
Player A, Country B / Club C, Country D
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from the Respondent the total amount of USD 37,500, the Dispute Resolution
Chamber decided that it must reject in its entirety the claim put forward by the
Claimant.
III.
Decision of the Dis pute Res olution Cham ber
The claim of the Claimant, Player A, is rejected.
*****
Note relating to the m otiv ated decision (legal remedy):
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS, a copy of
which we enclose hereto. Within another 10 days following the expiry of the time limit
for filing the statement of appeal, the appellant shall file a brief stating the facts and
legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, Country B / Club C, Country D
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